Bill Text: CA AB2390 | 2021-2022 | Regular Session | Amended
Bill Title: Theft: aggregation of amounts and diversion.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Failed) 2022-10-24 - From committee: Without further action pursuant to Joint Rule 62(a). [AB2390 Detail]
Download: California-2021-AB2390-Amended.html
|
Amended
IN
Assembly
March 17, 2022 |
CALIFORNIA LEGISLATURE—
2021–2022 REGULAR SESSION
Assembly Bill
No. 2390
| Introduced by Assembly Member Muratsuchi |
February 17, 2022 |
An act to amend Section 490.1 of add Section 490.3 to, and to add Chapter 2.97 (commencing with Section 1001.98) to Title 6 of Part 2 of, the Penal Code, relating to theft.
LEGISLATIVE COUNSEL'S DIGEST
AB 2390, as amended, Muratsuchi.
Petty theft. Theft: aggregation of amounts and diversion.
Existing law, the Safe Neighborhoods and Schools Act, enacted as an initiative statute by Proposition 47, as approved by the electors at the November 4, 2014, statewide general election, makes the theft of money, labor, or property petty theft punishable as a misdemeanor whenever the value of the property taken does not exceed $950 and grand theft when the value exceeds $950. Proposition 47 requires shoplifting, defined as entering a commercial establishment with the intent to commit larceny if the value of the property taken does not exceed $950, to be punished as a misdemeanor.
Proposition 47 authorizes amendment of its provisions by a
2/3 vote of the Members of each house of the Legislature so long as the amendments are consistent with and further the intent of the act.
This bill would amend Proposition 47 by authorizing the aggregation of the values of the property involved in one or more cases of shoplifting or theft into a single count or charge when the case involves one or more acts of theft or shoplifting, with the sum of the value of all property or merchandise being the value considered when determining the degree of theft. By increasing the penalty for a crime, this bill would impose a state-mandated local program.
Existing law authorizes a court to grant pretrial diversion to a defendant in specified cases, including when the defendant is suffering from a mental disorder, specified controlled substances crimes, and when the defendant was, or
currently is, a member of the United States military.
This bill would establish a pretrial diversion program for defendants who have been alleged to have committed a felony theft offense and who meet specified requirements.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
Existing law authorizes petty theft, as defined, to be charged as a misdemeanor or, in the prosecutor’s discretion, as an infraction, provided that the person charged has no other theft or theft-related conviction. Existing law limits the fine for an infraction not to exceed $250.
This bill would make technical, nonsubstantive changes to these provisions.
Digest Key
Vote:Bill Text
The people of the State of California do enact as follows:
SECTION 1.
Section 490.3 is added to the Penal Code, to read:490.3.
Notwithstanding any other law, in a case involving one or more acts of theft or shoplifting, including, but not limited to, violations of Sections 459.5, 484, 488, and 490.2, the value of property or merchandise stolen may be aggregated into a single count or charge, with the sum of the value of all property or merchandise being the value considered in determining the degree of theft.SEC. 2.
Chapter 2.97 (commencing with Section 1001.98) is added to Title 6 of Part 2 of the Penal Code, to read:CHAPTER 2.97. Felony Theft Diversion
1001.98.
(a) (1) On an accusatory pleading alleging a felony theft offense, including the theft of retail property or merchandise, the court may, upon the request of the defendant or the prosecutor, or upon the court’s own motion, after considering the positions of the defense and prosecution, grant pretrial diversion to a defendant pursuant to this section if the defendant meets all of the requirements specified in subdivision (b).(2) A defendant may not be offered diversion pursuant to this section for any of the following offenses:
(A) A serious felony described in subdivision (c) of Section 1192.7.
(B) A violent felony described in subdivision (c) of Section 667.5.
(C) A violation of Section 368.
(D) Embezzlement, as described in Chapter 6 (commencing with Sectiton 503) of Title 13 of Part 1.
(E) An offense for which the value of the stolen property or merchandise exceeds $25,000.
(3) A defendant may not be offered diversion if the defendant has a prior conviction for a serious felony described in subdivision (c) of Section 1192.7, or for a violent felony described in subdivision (c) of Section 667.5(c), where the conviction occurred within five years of the date of commission of the divertible offense.
(4) As used in this section, “pretrial diversion” means the
postponement of prosecution, either temporarily or permanently, at any point in the judicial process from the point at which the accused is charged until adjudication, to allow the defendant to participate in the appropriate diversion program.
(b) Pretrial diversion may be granted pursuant to this section if all of the following criteria are met:
(1) The court makes a prima facie determination that at least one of the factors listed below substantially contributed to the commission of the charged offense:
(A) The defendant lives with a mental disorder, as identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders, including, but not limited to, substance use disorder (SUD), but excluding antisocial personality disorder, borderline personality disorder, and pedophilia. Evidence
of the defendant’s mental disorder shall be provided by the defense.
(B) The defendant has experienced psychological, physical, or childhood trauma, including, but not limited to, abuse, neglect, exploitation, or sexual violence (Adverse Childhood Experiences – ACEs).
(C) The defendant suffers from poverty by lacking enough resources to provide the necessities of life, such as food, clean water, shelter, and clothing.
(D) Any other condition affecting the defendant’s motivation for committing the crime that the court finds substantially mitigating.
(2) The defendant shall consent to diversion and waive all rights to a speedy trial, unless the defendant has been found to be an appropriate candidate for diversion in lieu of commitment pursuant to clause
(iv) of subparagraph (B) of paragraph (1) of subdivision (a) of Section 1370 and, as a result of the defendant’s mental incompetence, cannot consent to diversion or give a knowing and intelligent waiver of the defendant’s right to a speedy trial.
(3) The defendant shall agree to comply with treatment as a condition of diversion.
(4) The court shall be satisfied that the defendant will not pose a danger to public safety if treated in the community. The court may consider the opinions of the district attorney, the defense, or a qualified mental health expert, and may consider the defendant’s violence and criminal history, the current charged offense, and any other factors that the court deems appropriate.
(c) (1) If the court finds the defendant is suitable for diversion, the court may offer the
defendant the opportunity to participate in an appropriate diversion program, as determined by the court, in lieu of further criminal proceedings. Appropriate programs include ones that are utilized in the criminal justice system in that county. The court shall monitor the defendant’s progress with regular hearings and program reports every 30 to 60 days.
(2) An appropriate diversion program may include, but is not limited to, one or more of the following:
(A) A drug court or related substance use disorder treatment program.
(B) A mental health court or mental health-related treatment program.
(C) A veterans court program.
(D) A restorative justice-based program.
(E) A job training program.
(F) Other appropriate community-based program.
(d) Upon request, the court shall conduct a hearing to determine whether restitution, as defined in subdivision (f) of Section 1202.4, is owed to a victim as a result of the diverted offense and, if owed, order it payable to the victim. The restitution order shall be enforceable as a civil judgment pursuant to subdivision (i) of Section 1202.4 and Section 1214, including after diversion is completed or terminated. The court shall make payment of restitution a condition of diversion. However, a defendant’s inability to pay restitution due to indigence or mental disorder shall not be grounds for denial of diversion or a finding that the defendant has failed to comply with the terms of diversion.
(e) If the defendant has performed satisfactorily in diversion, at the end of the period of diversion, the court shall dismiss the defendant’s criminal charges that were the subject of the criminal proceedings at the time of the initial diversion. A court may conclude that the defendant has performed satisfactorily if the defendant has substantially complied with the requirements of diversion, has avoided significant new violations of law unrelated to the factors contributing to the defendant’s offense, and has a plan in place to help address the factors contributing to the defendant’s offense. If the court dismisses the charge, the clerk of the court shall file a record with the Department of Justice indicating the disposition of the case diverted pursuant to this section. Upon successful completion of diversion, if the court dismisses the charges, the arrest upon which the diversion was based shall be deemed never to have occurred, and the court shall order access to the record of the arrest
restricted in accordance with Section 1001.9, except as specified in subdivisions (g) and (j). The defendant who successfully completes diversion may indicate in response to any question concerning the defendant’s prior criminal record that the defendant was not arrested or diverted for the offense, except as specified in subdivision (j).
(f) A record pertaining to an arrest resulting in successful completion of diversion, or a record generated as a result of the defendant’s application for or participation in diversion, shall not, without the defendant’s consent, be used in any way that could result in the denial of any employment, benefit, license, or certificate.
(g) If any of the following circumstances exist, the court shall, after notice to the defendant, defense counsel, and the prosecution, hold a hearing to determine whether the criminal proceedings should be reinstated,
whether the treatment or program should be modified, or whether the defendant should be conserved and referred to the conservatorship investigator of the county of commitment to initiate conservatorship proceedings for the defendant pursuant to Chapter 3 (commencing with Section 5350) of Part 1 of Division 5 of the Welfare and Institutions Code:
(1) The defendant is charged with an additional misdemeanor allegedly committed during the pretrial diversion and that reflects the defendant’s propensity for violence.
(2) The defendant is charged with an additional felony allegedly committed during the pretrial diversion.
(3) The defendant is engaged in criminal conduct rendering the defendant unsuitable for diversion.
(4) The court determines either of the
following circumstances exist:
(A) The defendant is performing unsatisfactorily in the assigned program.
(B) The defendant is gravely disabled, as defined in subparagraph (B) of paragraph (1) of subdivision (h) of Section 5008 of the Welfare and Institutions Code. A defendant shall only be conserved and referred to the conservatorship investigator when this finding is made.
(h) (1) The diversion opportunities in this section shall only be made available for the defendant once in any 12-month period, as measured from the date of the earliest charged offense of this section.
(2) The period during which criminal proceedings against the defendant may be diverted shall be no longer than two years.
(i) The defendant shall be advised that, regardless of the defendant’s completion of diversion, both of the following apply:
(1) The arrest upon which the diversion was based may be disclosed by the Department of Justice to any peace officer application request and that, notwithstanding subdivision (f), this section does not relieve the defendant of the obligation to disclose the arrest in response to a direct question contained in a questionnaire or application for a position as a peace officer, as defined in Section 830.
(2) An order to seal records pertaining to an arrest made pursuant to this section has no effect on a criminal justice agency’s ability to access and use those sealed records and information regarding sealed arrests, as described in Section 851.92.
(j) Any factors specified in subdivision (b) that the court found to contribute to the commission of the crime, any progress reports concerning the defendant’s treatment, or any other records related to the factors that were created as a result of participation in, or completion of, diversion pursuant to this section or for use at a hearing on the defendant’s eligibility for diversion under this section may not be used in any other proceeding without the defendant’s consent, unless that information is relevant evidence that is admissible under the standards described in paragraph (2) of subdivision (f) of Section 28 of Article I of the California Constitution. However, when determining whether to exercise its discretion to grant diversion under this section, a court may consider previous records of participation in diversion under this section.
(k) As used in this section, the following definitions shall apply:
(1) “Retail property or merchandise” means an article, product, commodity, item, or component intended to be sold in retail commerce.
(2) “Value” means the retail value of an item as advertised by the affected retail establishment, including applicable taxes.
SEC. 3.
No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.(a)Petty theft, where the value of the money, labor, or real or personal property taken is of a value which does not exceed fifty dollars ($50), may be charged as a misdemeanor or an infraction, at the discretion of the prosecutor, provided that the person charged with the offense has no other theft or theft-related conviction.
(b)(1)Any offense charged as an infraction under this section shall be subject to the provisions of subdivision (d) of Section 17 and Sections 19.6 and 19.7.
(2)A violation, which is an infraction under this section, is punishable by a fine
not to exceed two hundred fifty dollars ($250).
